Response questionnaire project group Timeliness Judicial Council of Scotland 1. The Court System and Available Statistics 1.1 The court system in Scotland comprises a hierarchy of courts. At the top of the hierarchy is the Supreme Court of the United Kingdom, which is located in London. It has an appellate jurisdiction from the Scottish courts in civil matters and, since the devolution arrangement which was introduced in 1999, in human rights issues in relation to criminal matters. Until devolution, there was no right of appeal in criminal matters to London. The senior courts in Scotland are the Court of Session (civil matters) and the High Court (criminal matters). Rather confusingly, as a result of practice before the Union of Scotland and England in 1707, they are known as the Supreme Courts of Scotland. Thus when we refer below to the Supreme Courts Programming Board, we are speaking of a Scottish rather than a UK body. The Court of Session and the High Court have both a first instance and an appellate jurisdiction. The High Court has exclusive jurisdiction to hear cases involving certain serious crimes and its judges have a sentencing power which is considerably greater than that conferred on sheriffs, who cannot impose a sentence of imprisonment which is more than for five years. At a local level there are sheriff courts, each of which has a defined geographical jurisdiction within Scotland. Sheriffs have jurisdiction in both civil and criminal matters. Almost all family cases are now heard in the sheriff court. Civil cases with a value of £5,000 or less must be heard in the sheriff court and cannot be raised in the Court of Session. As part of a proposed reform of the civil justice system the Scottish Government plans to raise that limit very significantly. The justice of the peace court deals with minor crimes only. Many matters which might otherwise be adjudicated upon in the civil courts are heard by administrative tribunals. To name but a few, employment law disputes, claims for social security payments, tax disputes, and claims to live in the United Kingdom 1 under our immigration and asylum laws are dealt with by tribunals rather than the civil courts. There are 34 judges of the Court of Session and High Court who have both a civil and a criminal jurisdiction. There are 6 Sheriffs Principal who have regional responsibility administrative responsibility for the sheriff courts within their sheriffdom and 141 sheriffs. There are also about 430 lay justices of the peace and 6 stipendiary magistrates in the justice of the peace courts. 1.2 The Scottish Court Service publishes statistics in its annual report and accounts. The latest report dated 11 August 2010 is for the year 2009/2010. The report records the numbers of civil actions, petitions and appeals and the numbers of High Court indictments, trial and appeals in each of the past three years. Similar figures are published for the sheriff court. See sections 5.2, 5.3 and 5.5 (pp.24, 26 and 27). It also records (on pp.20-21) over two years the waiting periods for the hearing of cases and appeals in both civil and criminal cases in each level of the court hierarchy. The link to the 2009/10 report is http://www.scotcourts.gov.uk/news/13october2010/SCS%Annual%20Report%and20 Accounts%202009%202010.pdf The Scottish Government publishes further statistical material on criminal justice at http://www.scotland.gov.uk/Topics/Statistics/Browse/Crime-Justice 1.3 Recently, the Supreme Courts Programming Board has agreed a new performance framework which will be presented to the Scottish Courts Service and is likely to be adopted in the next financial year. In civil cases the indicators, which will be produced quarterly (four times per year) will measure: (i) the time during which the court has control over the timetable of a case, namely the period during which the case is subjected to judicial case management or the time lapse between the parties having finalised their written pleadings and the first date which the court can offer for a substantive hearing; and (ii) the end to end timescale, namely the average period from when the case is introduced into the court until its determination at first instance. The reason for the distinction is that, in many of our civil procedures, the parties and their legal representatives determine the pace at which a case progresses as it is left to the parties to take the initiative in finalising their written pleadings and fixing hearings. In response to criticism from the European Court of Human Rights in Anderson v United Kingdom1 that the Court of Session should not leave it to the parties to determine progress but should take steps to avoid unnecessary delay, the court has put in place measures to identify cases which parties have failed to progress. But it is frequently the case that parties will want their cases to be argued by counsel whom they have chosen and they will not take the first date which the court is able to offer but prefer to take a later date, when their counsel are available. As a result, the first indicator measures what the court can do and the second is an indicator of the performance of the justice system (including the legal profession) as a whole. 1 [2010] ECHR 145 2 In cases where there are different forms of case management (i.e. personal injury actions and commercial actions) the Supreme Courts Programming Board has recommended modified performance indicators with the aim of showing essentially the same things. In civil appeals the quarterly performance indicators are to be: (i) the current waiting period for the earliest available non-urgent two day hearing; and (ii) the average period from the presentation of an appeal until its final disposal on the merits. In criminal cases there are statutory limits on the period of time between an accused person appearing in court on petition and the start of his trial. Different time limits are set depending on whether the accused person is at liberty or in custody before his trial: At liberty In custody From petition to the first preliminary hearing 11 months 110 days From petition to start of trial 12 months 140 days These limits can be extended only with the permission of the court. Because of difficulties which the prosecution service faces in preparing cases and the need for the defence to respond to the prosecutor’s disclosure of his evidence with their own enquiries, it is not uncommon for the court to have to extend those time limits. When an accused person is not in custody, an extension causes no real harm. It is more serious when the 140 day limit has to be extended as the accused person remains in custody. In 2009/2010 the court granted such an extension in 31% of High Court cases.2 The Supreme Courts Programming Board has recommended the following performance indicators in criminal cases in the High Court on a quarterly basis: First instance: (i) The average number of preliminary hearings per case; (ii) In relation to cases which do not proceed to trial – (a) the percentage of trial diets that are adjourned and (b) the percentage at which pleas of guilty are tendered; (iii) In relation to cases which proceeded to trial, the average period between the date when the case was first cited to a preliminary hearing and the conclusion of the trial. The proposed performance indicators for criminal appeals are: (i) the current waiting period for an appeal hearing in respect of each type of criminal appeal; and (ii) the average period from the date on which permission to appeal is granted until final disposal of the appeal in respect of each type of appeal. 2 See SCS Annual Report and Accounts 2009/2010, p.21. 3 2. Statistics, Requirements and Transparency 2.1 In the Court of Session and the High Court, the Supreme Courts Programming Board examines quarterly the statistics referred to in 1.3 above and plans the allocation of resources in response to them. 2.2 Those statistics are provided to the Lord President (our senior judge), the senior court officials and the administrative judges who sit on the Supreme Courts Programming Board. It is likely that those statistics will replace the equivalent performance indicators which were used in the Scottish Court Service’s Annual Report and Accounts to which we have referred. In addition, the commercial court judges see detailed statistics of the workload of the commercial court and senior court officials keep many other statistics for internal use. In civil litigation, we have benchmarking of the time it takes to hold the substantive hearing in a personal injury case and in a commercial case and we are currently extending that to other cases. 2.3 We do not publish the processing time of individual cases but the court service has internal records in the computerised Case Management System (“CMS”) which show each case. The administrative judges, senior officials and, if necessary, the Lord President, will have access to data on an individual case if a problem of timely delivery of a judgment arises. CMS will be used to present the new performance indicators. 2.4 There are targets in civil litigation for the processing of personal injury and commercial cases. There is also the target of twelve weeks for the production of written opinions in all civil cases. The latter target is administered by an administrative judge, who will interview the judge and, if needed, provide assistance, such as re-directing further work from the judge, to enable the completion of a delayed judgment.